Lawyers’ association files brief in support of former prosecutor

Martin Desmond appears to have an ally in his lawsuits against Mahoning County Prosecutor Paul Gains, who fired him last year.

The Ohio Employment Lawyers Association filed an amicus, or “friend of the court,” brief in Desmond’s lawsuit that appeals a State Personnel Board of Review report that denied Desmond whistleblower status.

“Martin Desmond is a whistleblower,” the brief begins.

In April 2017, Gains told reporters Desmond violated office policy and discussed a matter he no longer handled with people outside the office, including a lawyer who sued the county in federal court.

Desmond’s lawsuits dispute that rationale and argue he was fired in retaliation for exposing misconduct.

Gains has told The Vindicator Desmond’s claims have no merit.

The OELA said it does not typically file amicus briefs, but Visiting Judge H.F. Inderlied has a unique opportunity to address a “wrongly-decided” decision from the 10th District Court of Appeals.

The State Personnel Board of Review report relies on the court’s Haddox decision, which the OELA argues “is not good policy and is no longer good law.”

The SPBR cited Haddox to argue a report submitted by Desmond to Gains citing alleged misconduct in Gains’ office was not made in good faith because Gains compelled the report.

The OELA argues that considering motive when determining whistleblower status is neither required nor permitted by the Ohio Revised Code.

“The Board’s twin conclusions – that employees who must report wrongful conduct as part of their duties are never protected for doing so, and that employees who report wrongdoing in response to an employer’s order are not acting with “good faith” – could apply to virtually any Ohio public employee in any scenario,” the brief reads.

If the decision stands “Ohio public servants will face an impossible choice: punished with impunity if they stay silent, retaliated against with impunity if they come forward,” the brief concludes.

The case is one of several Desmond has before Judge Inderlied in Mahoning County Common Pleas Court that alleges wrongful termination by Gains and prosecutorial misconduct in Gains’ office.